March 25, 2021 ~ Conservation Commission Meeting

2021-03-25 · Conservation Commission · 1:33:57 · watch on YouTube →

The Conservation Commission met remotely on March 25, 2021 for the second instalment of a presentation by the town's planner, George, on Durham's resource protection zoning. He walked the commission through four questions: what the state actually requires, how Durham's much larger resource protection district came to exist, what the 2018 comprehensive plan recommends, and what a recalibrated map would look like. His central finding was that only a small part of what Durham zones as resource protection is required by state law, and that most of the rest rests on a 2002 comprehensive plan whose flood plain map, drawn from a 1936 flood of record, is not close to accurate. He set out eight criteria for recalibrating the map against current FEMA flood plain data, the National Wetlands Inventory and Beginning with Habitat, and showed a first draft from GPCOG in which some areas shrink and others expand. No votes were taken; the commission asked him to add the Beginning with Habitat co-occurrence areas outside existing resource protection to the next map, and asked him back on April 1 rather than waiting until the end of the month.

No written minutes could be matched to this meeting. The transcript records that the speaker changed but never who was speaking, so any name attached to a statement below is inferred from context and is marked (?).

What was discussed

1. 0:03
   Background to the presentation

   George (?) explained that the research began with work by Mike Morris, a former DEP shoreland zoning staffer, which he turned into a report presented to the planning board in August. The planning board never returned to it while dealing with home-based businesses and other drafting, and with town meeting coming in April, Juliet agreed he should bring the continued research to the commission for its input.

2. 0:03
   The four questions

   George (?) said he would work through how Durham's resource protection compares with state requirements, how the current zoning came to be, what the 2018 comprehensive plan recommends, and what a refinement following that plan would look like. He asked members to interrupt rather than hold questions, and said he would pause after each section.

3. 0:03
   What mandatory shoreland zoning must cover

   The areas that must be covered are everything within 250 feet of the river, everything within 250 feet of Runaround Pond, which is a great pond under state law, and the large open non-forested wetlands added in Durham over the last couple of years. He noted the oddity that the river itself and Runaround Pond itself are not regulated by shoreland zoning, and that wetlands within those systems fall under DEP wetland rules rather than shoreland zoning.

4. 0:03
   Streams that reach the threshold

   The fourth category is everything within 75 feet of the larger streams, which in Durham means New Brook for nearly its whole length, Dyer Brook up to about the elementary school, and the east branch of Chandler Brook, which becomes the Chandler River before entering the Royal River.

5. 5:42
   What state law requires to be resource protection

   Of the shoreland areas, only the steep slopes and flood plains along the Androscoggin River are required to be resource protection. About half of Runaround Pond's 250-foot border is forested wetland, and forested wetland of two acres or more within that border, or along the border of the large open wetlands, must also be resource protection.

6. 5:42
   Reading the maps

   Joe (?) asked George to go back a slide and talk through the colour coding, saying he needed to vocalise it to be sure he understood. George (?) confirmed the open wetlands are emergent wetlands drawn from the National Wetland Inventory, that Mike Morris originally found six and later added a seventh, and that the maps come from several databases that do not all line up.

7. 10:54
   Why the basis matters

   George (?) said that when he began working with the town in 2018 nobody could say why the regulations were as they are, and that land use restrictions without science behind them create serious political problems and undermine the protection they are meant to provide. A member added that the wetland analysis was not simply pulled off a National Wetland Inventory layer but reviewed by Mike Morris using his own data.

8. 10:54
   The gap between state requirement and Durham's map

   George's answer to the first question was that the resource protection required in Durham by state law is only the red area on his map, and that everything else the town zones as resource protection goes beyond any state requirement.

9. 10:54
   Three options from the report to the planning board

   The August report offered three responses: keep current protections and make only the adjustments needed for compliance with the mandatory shoreland zoning act; adopt the DEP shoreland zoning framework and roll protection back to the state minimum; or recalibrate the existing resource protection against the best available natural resources inventory. George (?) said his presentation follows the third track.

10. 10:54
    Option one is already done

    The planning board's November amendments overhauled the shoreland zoning parts of the land use ordinance with Mike Morris reviewing the language, and in December the DEP commissioner signed an order approving Durham's shoreland zoning as compliant. One remaining piece of language is on the April town meeting ballot, after which the town will be fully compliant, so legally it does not have to do anything further.

11. 16:10
    What rolling back would mean

    Under option two the resource protection along the Androscoggin would remain but many streams would move to stream protection, losing the 100-foot untouchable buffer while remaining subject to NRPA stream alteration rules. Much of the flood plain area would come out of resource protection and be governed only by flood plain management, which is less restrictive.

12. 21:27
    How the current zoning came about

    George traced it to the 2002 comprehensive plan update, prepared with the Androscoggin council of governments at a time when southern Maine was under heavy development pressure and Durham, like many towns, adopted a growth cap. The recommendations in that plan are the basis for the current zoning map.

13. 21:27
    The three 2002 criteria

    The 2002 plan put all flood plains into resource protection, though state law requires only that flood plain development be flood resistant rather than prohibited; all wetlands of 10 acres or more, forested or open, on the reasoning that neither is a suitable place for development; and all areas subject to mandatory shoreland zoning. For the large forested wetlands, only the wetland itself was covered, with no shoreland zoning applied outside it.

14. 26:30
    The 2002 flood plain map

    George (?) said the flood plain map used in the 2002 plan is not even close to accurate against current FEMA mapping and that he cannot tell who prepared it or from what database. The zoning map itself states that the flood plain is as defined by the Army Corps of Engineers 1936 flood of record.

15. 26:30
    How the wetlands were picked

    One version of the zoning map states that the wetlands included were areas as defined on large-scale tax maps, and the swamps shown on the town's tax maps can still be seen on the town website. That is the basis on which particular large wetlands were put into resource protection, and it does not line up exactly with the wetlands inventory.

16. 26:30
    The 2018 comprehensive plan and its survey

    The 2018 update went through a public process, a town meeting and state certification for consistency with the growth management act. A survey run through the Greater Portland Council of Governments drew almost 400 responses, which George called remarkable for an electronic survey in a town Durham's size.

17. 32:23
    The three growth scenarios put to residents

    Residents were asked to choose between concentrating most new homes on smaller lots in the southwest bend growth district while limiting building elsewhere, allowing homes anywhere on lots of two acres or more with natural resources protected and views buffered, or rolling back regulations to allow smaller lots anywhere subject only to minimum state environmental standards. A fourth option at the public forums invited some mixture. George (?) said the spectrum was deliberately wide so the process could not be accused of having its mind made up.

18. 32:23
    What residents chose

    Most participants in both the survey and the forums did not support rolling back regulations, and a majority did not support concentrated growth. The preference was close to the status quo, large lots spread across town.

19. 32:23
    Connectivity missing from the survey

    Roberta (?) said what bothers her about the survey is that nothing in it addresses how areas connect ecologically, such as wildlife corridors or deer yards, so a house could go in exactly where animals move through. George agreed that is currently the case, but noted the 2018 plan does include the Beginning with Habitat inventories covering large undeveloped blocks and wildlife corridors, and that there was little public input in that direction during the 2016 to 2018 process.

20. 37:30
    Reading the survey result

    A member observed that with three or four choices one usually looks for a plurality, and that here one option took an outright majority from roughly ten percent of the town's population. He read it as a desire to keep lots large and preserve rural character and natural resources, which given how much resource protection the town already has limits development in areas that show up as unbroken habitat blocks.

21. 37:30
    What rural character means

    Members noted rural character has never been defined in Durham. George (?) offered a definition he attributed to a landscape architect, Gary Fog (?), who worked with a neighbouring town's conservation commission: rural is where the landscape dominates the view and buildings are secondary, and suburban is the reverse. He said that, rather than farming or logging, is what most southern Maine residents mean, and that the objection people voice is to houses spread across an agricultural field rather than to habitat fragmentation.

22. 43:51
    What the 2018 plan recommends

    Three strategies bear on resource protection: water resources 2.4, making the land use ordinance and zoning map consistent with DEP shoreland zoning guidelines, which has been done; natural resources 2.1, revising the zoning map to reflect the most recent FEMA flood plain mapping and applying resource protection to it; and strategy 4.2, ensuring the ordinances are consistent with state law on critical natural resources including deer yards, waterfowl nesting areas, wetlands and endangered plants and animals.

23. 43:51
    Current FEMA mapping and why the water backs up

    George (?) explained that in major floods such as 1996 the dam at Lisbon holds back water coming down the watershed, so the flood extends up the streams where steep slopes constrain it, and roads such as Swamp Road act as further dams where culverts cannot pass flood water. Overlaying the current FEMA mapping in red on the 2002 map in grey shows the 2002 version was far more extensive than the actual flood plain.

24. 49:22
    Beginning with Habitat scoring

    Beginning with Habitat ranks areas by co-occurring natural resource values, with a critically impaired designation weighted four, a threatened species with buffer two, and a species of special concern one, so darker green means more values converging. The 2018 comprehensive plan says anything scoring six or greater should be considered for resource protection or mandatory clustering.

25. 49:22
    Using the habitat scores defensively

    George's (?) suggested starting point is that where an area is already in resource protection and also scores six or higher on the habitat co-occurrence map, it should not be a candidate for removal during recalibration. Members took some time to establish that the map he was showing covers only areas already in resource protection, not all areas scoring six or more, and that adding the rest would increase the amount of protected land.

26. 54:45
    The aquifer district as a precedent

    George pointed to the aquifer protection district, which until 2019 followed outdated sand and gravel aquifer maps shown in red, and was revised at the last zoning map amendment to match the 2011 geological survey shown in blue. The old map both regulated land outside the aquifers and left land actually over them unregulated, which he offered as the argument for the same exercise on resource protection.

27. 54:45
    The eight calibration criteria

    The criteria he set out were: keep 100-year flood plains along the river, Runaround Pond and streams but limited to the actual flood plain rather than the old map; keep all areas subject to mandatory shoreland zoning in resource protection; use 75 feet from a stream rather than 100; include forested wetlands of 10 acres or more together with contiguous wetlands of other classifications; treat emergent wetlands the same way; consider the state provision reducing the 250-foot band around open wetlands to 75 feet; apply the 250 feet only where an open wetland is rated moderate to high value for waterfowl and wading birds, which he thought applied to one or two; and keep resource protection where Beginning with Habitat shows six or more co-occurring values.

28. 1:00:03
    One hundred feet or seventy-five

    George (?) said DEP standardised its stream setbacks at 75 feet to remove the inconsistency between 75 and 100. He cited a case in Durham where DEP (?) told a landowner 75 feet, the foundation went in at 84 feet, and the town said it had to be 100. Asked whether a local ordinance can be stricter, he said it can, but the town should have science to support the difference.

29. 1:05:12
    The draft recalibrated map

    GPCOG produced a first cut applying the eight criteria, shown beside the existing resource protection. Along the streams the band shrinks from roughly 300 feet either side to 75, except where flood plain extends further. George previewed the fine-tuning still to come, including a 10-acre wetland whose adjoining 8-acre wetland does not appear because the National Wetlands Inventory classifies it differently, and said doing that work is only worth it if the commission supports the direction.

30. 1:05:12
    Disagreement over how far to go

    Juliet (?) said that if the work is to be based on science, the commission should look beyond areas already inside resource protection, since limiting it to what was drawn years ago is not data-driven. George advised starting by recalibrating existing zoning, saying that in forty years he has seen voters throw up their hands when too many issues are layered together, and that building credibility by fixing what is broken leaves room for a second phase. He acknowledged the opposite argument, that residents may say they have had enough and there will be no second chance.

31. 1:10:30
    Areas that would gain and lose protection

    Comparing the two maps, a wetland complex in the northwest based on outdated data shrinks, while another wetland system and an area at the western town line would gain protection they do not now have. George (?) said the message to residents is that areas are being added where the science supports it and removed where it does not, and that the town needs to be able to tell landowners on both sides it is following the science.

32. 1:10:30
    The commission's strategic choice

    Zach (?) said the commission is at a junction on strategy and needs to align among itself before going much further, and that members should get into the detail on their own and reach a conclusion. A member argued the data-driven case cuts both ways: the commission is reducing stream buffers from 100 feet to 75 and adopting the new FEMA maps because of the data, so it should also apply the six-plus co-occurrence data rather than use data only when convenient.

33. 1:16:09
    Splitting the question in two

    George (?) proposed doing the analysis in two parts, keeping resource protection where it already exists and scores six or higher as one piece, and any expansion beyond that as a separate discussion. He suggested the same split could carry through to town meeting as two warrant articles rather than one, so that a piece drawing political fire does not sink the whole thing. Members agreed to treat them separately in discussion while still wanting to see the combined map.

34. 1:21:24
    Scheduling

    The commission had planned to use its April 1 meeting to digest what it had heard rather than take more, and members were divided between moving slower with discussion in between and getting the full package while it is fresh. George (?) said he was ready to go and that having it all in front of them was an advantage, and agreed to come back on April 1 and to send out the slides.

35. 1:26:25
    Limits on the mapping

    George (?) said he had pushed GPCOG and Beginning with Habitat through iteration after iteration to the point where they had stopped answering his emails, and that the maps came to the town at no charge through its GPCOG membership dues. Beginning with Habitat's databases cross town boundaries, so changing Durham's alone means changing everything else, which is GIS work they will not do at no cost, and GPCOG (?) says it lacks the capacity.

36. 1:26:25
    Finding other mapping resources

    A member who works in the Beginning with Habitat group explained the group is two or three people and is meant to produce maps of existing data rather than exploratory projections. Members discussed whether the commission has budget for extra maps, whether members' own GIS resources could be used if the data layers could be obtained, and whether the town has any relationship with a mapper. Roberta (?) suggested printing the habitat layer on a transparency and overlaying it physically; George (?) said he had done exactly that in PowerPoint but that it does not read clearly through the shades of green.

What was decided

• 10:54
  No vote was taken on which of the three options to pursue. The commission let George continue presenting along the third track, recalibrating the existing resource protection against current natural resources data, but members said the strategic choice needs its own discussion among themselves before they commit.tabled
• 1:10:30
  The commission asked George to bring back the recalibrated map with the Beginning with Habitat six-plus co-occurrence areas overlaid, including areas outside the existing resource protection district, so members can see how much difference that would make. George agreed to do so.passed
• 1:16:09
  Members agreed with George's suggestion to keep two questions separate in the analysis: retaining resource protection where it already exists and scores six or higher, and any expansion beyond current resource protection. He noted the same split could be carried to town meeting as two warrant articles so one can fail without taking the other with it.passed
• 1:21:24
  The commission agreed George should return on April 1 to present the rest of the analysis, rather than the commission using that meeting to discuss among itself and hearing the remainder at the end of April.passed
• 1:21:24
  George agreed to send the slides from this presentation to the commission.passed
• 1:26:25
  No decision was made on how to get further mapping produced now that GPCOG and Beginning with Habitat have reached the limit of what they will do without charge. Members agreed to take up at the next meeting whether the commission has budget for it and what members' own GIS resources could do.tabled

An outcome reads "unclear" where the recording does not state it plainly. The recogniser drops short words, and "the motion does not carry" is one missing word from its opposite.

Worth knowing

• 10:54
  The DEP commissioner signed an order in December approving Durham's shoreland zoning as compliant with the mandatory shoreland zoning act, and a final wording fix is on the April town meeting ballot. George (?) told the commission that once that passes the town is fully compliant and legally does not have to do anything further, so everything discussed at this meeting is optional.
• 26:30
  Most of Durham's resource protection district rests on the 2002 comprehensive plan, whose flood plain map George (?) said is not even close to accurate and whose source he cannot identify. The zoning map itself cites the Army Corps of Engineers 1936 flood of record, and the large wetlands were selected from swamps drawn on the town's large-scale tax maps.
• 32:23
  Almost 400 residents responded to the 2018 comprehensive plan survey, a figure a member put at roughly ten percent of the town's population. A majority chose allowing homes anywhere on lots of two acres or more with natural resources protected and views buffered; neither rolling back the regulations nor concentrating growth in the southwest bend district drew majority support.
• 1:05:12
  The commission split over scope. George advised recalibrating only what is already resource protection, warning from forty years of experience that layering issues together makes voters give up on the whole thing. Juliet and others argued that if the case is science, the analysis cannot stop at lines drawn years ago, and that a town which grants one change rarely grants a second.

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